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Criminalisation of HIV transmission in Europe

A rapid scan of the laws and rates of prosecution for HIV transmission within signatory States of the European Convention of Human Rights
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Denmark

Estimated number of people living with HIV: 5,000
Number of people prosecuted for HIV transmission: 12
Number of people convicted for HIV transmission: 2

Applicable law: Danish Penal Code, Section 252.2 amended by government order no. 547 of 2001

Key wording in the law:

The Danish Criminal Code section 252:

(1) Any person who, for the purpose of gain, or who purely wantonly or in any similar reckless manner, exposes the life of physical ability of others to impending danger shall be liable to imprisonment for any term not exceeding four years.
(2) The same penalty shall apply to any person who wantonly brings about danger that someone be infected with a fatal and incurable disease.
(3) Following negotiations with the Minister of Public Health, the Minister of Justice shall lay down which diseases meet the criteria of Subsection.

The government order nr. 547 of 15 June 2001:

§ 1: The following disease is covered by the Danish Criminal Code section 252, subsection 2: HIV/aids (human immune-defect virus/gained immune-defect syndrome).

Discussion:

From the responses received, it appears twelve people have been prosecuted for transmitting HIV in Denmark. Of these, two people have been convicted. The first of the prosecutions was brought in 1993. However, the Danish Supreme Court found the defendant not guilty because it felt Section 252 did not provide a clear legal base for conviction. Other subsequent prosecutions failed for the same reason. Section 252 was thus amended in 2001 to include transmission of HIV. Since then, some prosecutions have failed for other reasons. In one case, the prosecuted person committed suicide before he could be convicted. There have been two prosecutions and one conviction in the last year.

The two people convicted were male and transmission occurred during heterosexual sex. One was Danish and the other a foreigner. All twelve who were prosecuted were male. Five of these were Danish; one of other European descent; one of Middle Eastern descent; four were African and one was Latin American. Information about their occupations at the time of prosecution was not available.

It is not clear whether exposure to the risk of transmission is also subject to prosecution.

Transmission of other sexually transmitted infections is not subject to prosecution.

Completed questionnaires were received from HIV-Denmark, Ministry of Justice and Office of the Director of Public Prosecutions.

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